Authorizing Take of Fully Protected Species
For decades, the California Fish and Game Code (FGC) list of “Fully Protected” species has posed a challenge for private development, public infrastructure projects, agricultural activities, and resource management planning, because no mechanism existed to authorize incidental take. With little advance build up, this has been changed by a bill signed into law this month.
On October 8, 2011, Governor Brown signed Senate Bill (SB) 618, authorizing the California Department of Fish and Game (DFG) to permit the incidental take of Fully Protected species, if the species is covered and conserved in a Natural Community Conservation Plan (NCCP). A copy of the chaptered version of the bill is here and the bill’s history and analysis can be found here.
The Natural Community Conservation Planning Act (FGC Sections 2800-2835) defines “covered species” to include species listed pursuant to the California Endangered Species Act (CESA) and nonlisted species that are conserved and managed under an approved NCCP and that may be authorized for take. SB 618 revises the definition of “covered species” to include Fully Protected species so they can be included among the species authorized to be taken under the NCCP.
The Fully Protected regulatory status was established in the FGC in the 1960s prior to adopting CESA. It represents California’s initial efforts to identify and provide additional protection to those animals that were rare or faced possible extinction. Prior to enactment of SB 618, under FGC Sections 3511, 4700, 5050, and 5515, Fully Protected species may not be taken or possessed at any time and no licenses or permits may be issued for their take except for necessary scientific research or for the protection of livestock. Under the FGC, "take" means hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill. In all, 37 species are classified as Fully Protected species (click here for a list). Examples include blunt-nosed leopard lizard, peregrine falcon, golden eagle, white-tailed kite, ringtail, and salt-marsh harvest mouse. Some of these species were subsequently protected under CESA or the federal Endangered Species Act.
Although the Fully Protected status may have intended to prohibit hunting, catching, or harvesting of specific species, the regulations also prevented “take” of these species from land development, farming, ranching, and other activities. Because the previous regulation provided no provision for DFG to authorize incidental take during otherwise lawful activities, as is included in CESA, the presence of a Fully Protected species in a project area often meant the project could not move forward unless take could be completely avoided. This regulatory barrier frustrated many project proponents, agency regulators, and conservation biologists because there was no way to seek solutions to manage and conserve Fully Protected species in light of other land uses and activities.
By giving DFG authority to permit incidental take of Fully Protected species through the NCCP process, SB 618 represents an evolving regulatory mechanism to conserve rare species while allowing for other land uses and activities. If you have any questions about this bill or other issues related to authorizing take of special-status species, please feel free to call Ascent Senior Biologists, Linda Leeman or Steve Henderson.
Ascent Environmental, Inc. is a forward-looking environmental and natural resources consultancy. We apply our extensive CEQA and NEPA experience in our environmental practice with the goal of providing personal service and high quality results to our clients on their most important projects.
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